NORTH CAROLINA COURT OF APPEALS
Filed: 6 September 2005
JOSE GUADELUPE MELENDEZ
TORRES,
Employee,
Plaintiff,
v. From the North Carolina
Industrial Commission
JEFFREY J. SMITH, I.C. File No. 164967
Employer,
and
JAMES C. GREENE COMPANY,
Carrier,
Defendants.
Appeal by defendants from opinion and award entered by the
North Carolina Industrial Commission on 12 February 2004. Heard
in the Court of Appeals 1 February 2005.
The Bricio Law Firm, P.L.L.C., by Francisco J. Bricio, and
North Carolina Legal Aid, by Lori J. Elmer, for plaintiff-
appellee.
Young Moore and Henderson, P.A., by Zachary C. Bolen, for
defendant-appellants.
HUDSON, Judge.
Plaintiff sustained an admittedly work-related injury on 14
October 2000. After a hearing on 13 December 2002, Deputy
Commissioner Lorrie Dollar awarded plaintiff a limited period oftemporary total disability compensation and ongoing partial
disability benefits pursuant to N.C
. Gen. Stat. § 97-30 (2000).
Defendants appealed to the Full Commission, which affirmed the
Deputy Commissioner's decision on 4 February 2004. The Commission
also awarded plaintiff a ten percent (10%) penalty due to
defendants' late payment, as well as attorneys' fees as a “sanction
for [defendants'] failure to comply with the statutory requirements
in terminating indemnity payments and due to their bad faith in the
handling of this claim” pursuant to
N.C
. Gen. Stat. § 97-88 (2000)
and I.C. Rule 802 (2000).
Defendants appeal.
The evidence tends to show that plaintiff began working for
Jeffrey Smith Farm, and the North Carolina Grower's Association, as
a seasonal laborer from Mexico under the H2A program in July 2000.
The H2A program provides employment to immigrant laborers in North
Carolina pursuant to a visa that allows them to work during the
agricultural growing season. On 14 October 2000, plaintiff
sustained a compensable injury to a finger on his left hand. Dr.
Marvin Vice provided most of the medical care to plaintiff for this
injury. Dr. Vice examined plaintiff on 31 October 2000 and found
a displaced fracture of the finger. Plaintiff underwent surgery to
repair the fracture on 9 November 2000, and Dr. Vice provided
follow-up care for approximately twelve weeks. On 4 January 2001,
Dr. Vice operated on plaintiff to remove pins and wires from hisleft hand. Dr. Vice last saw plaintiff on 31 January 2001, at
which time he noted that plaintiff still had “a lot of restriction
of motion” of the affected finger. Dr. Vice advised plaintiff to
work on stretching the injured finger, to improve the range of
motion. Following this appointment, plaintiff returned to Mexico.
Before returning to Mexico, plaintiff worked for one day, on
26 January 2001, at Jeffrey Smith Farm, cutting and peeling
pumpkins. On 29 January 2001, defendants filed a Form 60 and a
Form 28. Defendants paid plaintiff temporary total disability from
23 October 2000 to 25 January 2001, but have paid nothing further.
This Court reviews decisions of the Industrial Commission to
determine
“whether any competent evidence supports the Commission's
findings of fact and whether the findings of fact support the
Commission's conclusions of law.” Deese v. Champion Int'l Corp.,
352 N.C. 109, 116, 530 SE.2d 549, 553 (2000) (citing Adams v. AVX
Corp., 349 N.C. 676, 509 S.E.2d 411 (1998). We may not “weigh the
evidence and decide the issue on the basis of its weight,” but must
only determine whether the record contains “any evidence tending to
support the finding.” Adams, 349 N.C. at 681, 509 S.E.2d at 414
(internal citation and quotation marks omitted).
However, the
Commission's conclusions of law are reviewed de novo. Grantham v.
R.G. Barry Corp., 127 N.C. App. 529, 534, 491 S.E.2d 678, 681
(1997), disc. review denied, 347 N.C. 671, 500 S.E.2d 86 (1998). Defendants argue that the Commission's findings of fact do not
support its conclusion that plaintiff is entitled to compensation
for total disability from 27 January 2001 to 29 April 2001; that
there was insufficient evidence of record to support a finding that
plaintiff was disabled from 24 January 2001 to 29 April 2001; and
that the Commission erred, as a matter of law, in concluding that
plaintiff is entitled to temporary partial disability since 30
April 2001.
We conclude that the Commission's findings are
supported by competent evidence and the findings do support its
conclusions in each respect.
Accordingly, we overrule these
assignments of error.
Defendants stipulated that plaintiff did not work between 27
January and 30 April 2001, and that since that time, “he has been
earning $6251 per week with his current employer.” Additional
findings include that after 31 January 2001, plaintiff's doctor did
not return him to work without restrictions, and that “plaintiff
was temporarily totally disabled from earning wages due to the
compensable injury from 22 October 2000 to 25 January 2001 and
again from 27 January 2001 until 29 April 2001.” Medical records,
also stipulated by the parties into evidence, show that on 12
December 2002, plaintiff's physician concluded that “the
restrictions right now . . . would be any persistent grasping with
pushing or pulling because of the inability to make a full fistwith the hand, writing with the hand would be somewhat limited,
however, he does mostly farmwork and I think anything where he has
to grasp or push or pull would be very difficult for him to do.”
Defendant contends that the Commission erroneously afforded
plaintiff a presumption of disability. Assuming arguendo, that
filing a Form 60 does not create a presumption of ongoing
disability, Sims v. Charmes/Arby's Roast Beef, 142 N.C. App. 154,
159-60, 542 S.E.2d 277, 281-82 (2001), these findings, as discussed
above, show that plaintiff's evidence established both the
existence and degree of disability. See Hilliard v. Apex Cabinet
Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982).
In addition,
the Commission found and concluded, and defendant has not
challenged on appeal, the following:
6. Defendants unilaterally terminated plaintiff's temporary
total disability benefits as of 25 January 2001.
* * *
8. Defendants did not file either an I.C. Form 28T or an I.C.
Form 24 prior to unilaterally terminating payment of temporary
total disability
benefits to plaintiff.
* * *
2. In addition to sums already paid pursuant to the I.C. Form
60, plaintiff is entitled to temporary total disability for
the period from 27 January 2001 through 29 April 2001 at the
rate of $265.83 per week. N.C. Gen. Stat.
§
97-29. Plaintiff
is entitled to have defendants pay a penalty of an additional
ten per centum (10%), pursuant to N.C. Gen. Stat.
§
97-18(g)
for failure to timely pay benefits due.
3. Plaintiff is entitled to
temporary partial disability
compensation at the rate of two-thirds of the difference
between the pre-injury and post-injury wage for the period
from 30 April 2002
and continuing in accordance with the
provisions of
N.C. Gen. Stat.
§
97-30.
Plaintiff is entitled
to have defendants pay a penalty of an additional ten per
centum (10%), pursuant to N.C. Gen. Stat.
§
97-18(g) for
failure to timely pay benefits due.
* * *
6. Plaintiff is entitled to have defendants pay his
reasonable attorney's fees for bringing this claim as a
sanction for [defendants'] failure to comply with the
statutory requirements in terminating indemnity payments and
due to their bad faith in the handling of this claim, which
arose from the same.
N.C
. Gen. Stat. § 97-88.1, Commission
Rule 802.
N.C. Gen. Stat.
§
97-18.1(b) (2000)
instructs employers that
they may terminate compensation if the employee attempts a trial
return to work, subject to N.C. Gen. Stat.
§
97-32.1
. Where an
employee purportedly returns to work, the Commission requires the
carrier to complete a Form 28T. I.C. Rule 404A (1) (2000). The
“employer shall promptly notify the Commission and the employee, on
a form prescribed by the Commission, of the termination of
compensation and the availability of trial return to work and
additional compensation due the employee for any partial
disability.” N.C. Gen. Stat.
§
97-18.1(b)
.
This Court has held
that the use of the word “shall” in the Workers' Compensation Act
indicates that the use of an Industrial Commission form is
mandatory. Bailey v. Western Staff Servs., 151 N.C. App 356, 360, 566 S.E.2d 509, 512 (2002)
. N.C. Gen. Stat.
97-32.1
(2000),
entitled “Trial return to work,” requires that “[i]f the trial
return to work is unsuccessful, the employee's right to continuing
compensation under G.S. 97-29 shall be unimpaired unless terminated
or suspended there
after pursuant to the provisions of this
Article.” Id.
Here, defendants filed a Form 28, but never filed a Form 28T.
While defendants contend that this makes no difference, neither
Rule 404A nor any other rule of the Commission permits the use of
a Form 28 to terminate compensation. Indeed, the two forms differ
significantly.
A primary purpose of a Form 28T, 'Notice of Termination of
Compensation,' is to give notice to the Industrial Commission
of the termination; but more importantly, it is a notice to
the employee of that employee's current status and rights
available to that employee.
Burchette v. East Coast Millwork Distributors, Inc., 149 N.C. App.
802, 809-10, 562 S.E.2d 459, 464 (2002). In contrast, a Form 28
does not conform with the statutory requirement and purpose of
advising the employee of “the availability of trial return to work
and additional compensation due the employee for any partial
disability.” N.C. Gen. Stat.
§
97-18.1(b).
Here, defendants paid plaintiff for his compensable injury and
admitted compensability when they filed a Form 60. Then, during
plaintiff's recuperation from his surgery, defendants suggestedplaintiff return to work, which he did for one afternoon. In lieu
of completing or filing a Form 28T, as required, defendants
unilaterally terminated compensation to plaintiff, without
following prescribed procedures, in violation of N.C. Gen. Stat.
§
§
97-18.1(b) and 97-32.1, and I.C. Rule 404A.
Here, it is undisputed that defendants commenced payment of
total disability compensation and that they never filed a Form 28T,
or other appropriate procedures(such as filing a Form 24), before
terminating plaintiff's compensation. To terminate benefits,
defendants ordinarily must file a Form 24, pursuant to which the
Commission must conduct an informal hearing and issue a decision
within 30 days after the filing of a Form 24. I.C. Rule 404(2)
(2000). Where defendants provide no grounds for termination and
fail to file a Form 24, the Commission may award continuing total
disability without considering such grounds. Lewis v. Sonoco
Products Co., 137 N.C. App. 61, 68, 526 S.E.2d 671, 675 (2000).
This Court has also held that where a carrier fails to comply with
the proper procedure for terminating benefits, the Commission may
order the carrier to pay all unpaid installments and to resume
payment of compensation. Hieb v. Howell's Child Care Center, 123
N.C. App. 61, 68, 472 S.E.2d 208, 213 (1996).
Thus, although the
Commission could have awarded plaintiff compensation on this basis
alone, here we conclude its award was based on more. As defendantshave not challenged the 10% penalty and award of attorneys' fees
pursuant to N.C. Gen. Stat.
§
97-88.1 and I.C. Rule 802, we leave
these sanctions undisturbed as addressing these procedural
violations.
In their final argument, defendants contend that the
Commission erred, as a matter of law, in its calculation of
plaintiff's average weekly wage, as it failed to take into account
that plaintiff was a seasonal worker.
N.C. Gen. Stat. § 97-
2(5)(2000) defines “average weekly wages” and delineates five
methods for calculating average weekly wages. Here, the Commission
used the third method under N.C. Gen. Stat. § 97-2(5), which
provides that:
[w]here the employment prior to the injury extended over a
period of less than 52 weeks, the method of dividing the
earnings during that period by the number of weeks and parts
thereof during which the employee earned wages shall be
followed; provided, results fair and just to both parties will
be thereby obtained.
Defendants complain that the Commission did not make any findings
of fact regarding why this method is fair to the parties.
Plaintiff responds that all of the evidence, including the Form 22
(wage chart) prepared by the defendants, the adjuster's testimony,
as well as the Forms 19 and 60, both prepared by defendants, show
the plaintiff's average weekly wage as $398.72. The Commission
then found as fact that the defendants paid benefits to plaintiffbased on an average weekly wage of $398.72, and concluded that this
wage based on “the third method” is “fair and equitable.” Thus, the
Commission's finding that this was plaintiff's wage, and the
Commission's conclusion of law that this method of calculating
average weekly wages was “fair and equitable” to the parties, are
supported by the evidence, which supports the pertinent findings.
Defendants assert that the Commission should have used the
fifth method listed under N.C. Gen. Stat. § 97-2(5):
[b]ut where for exceptional reasons the foregoing would be
unfair, either to the employer or employee, such other method
of computing average weekly wages may be resorted to as will
most nearly approximate the amount which the injured employee
would be earning were it not for the injury.
However, our Courts have ruled that the Commission's determination
of which method to use is binding on appeal. In McAninch v.
Buncombe County Schools, the Supreme Court held that “the
recalculation of plaintiff's average weekly wages by the Court of
Appeals through application of the fifth computation method
constituted an improper contravention of the Commission's fact-
finding authority.” 347 N.C. 126, 131, 489 S.E.2d 375, 378 (1997).
Accordingly, as we have upheld the findings of fact as to
plaintiff's wage, we decline to overrule the Commission's
conclusion, applying the third method of calculating average weekly
wages.
Affirmed.
Judges WYNN and STEELMAN concur.
Report per Rule 30 (e).
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